Judge Says FBI's Child Porn Investigation Bordered On 'Outrageous,' Lets It Keep All Of Its Evidence

Legal Issues

from the this-troubles-me-but-not-enough-to-actually-do-anything-about-it dept

Another ruling [PDF] has been handed down in the FBI’s multitudinous Playpen cases, this one consolidating four defendants in a Washington federal court. While the court does find aspects of the FBI’s child pornography distribution unpleasant, it’s not enough to result in anything more than some stern words. All evidence remains unsuppressed and all motions to compel discovery are denied. (h/t Brad Heath)

This was everything that was done with a single, Virginia-issued warrant.

For approximately 14 days, from February 20, 2015 through March 4, 2015, the FBI administered Website A from a government-controlled computer server located in Virginia, which forwarded a copy of all website communications to FBI personnel in Linthicum, Maryland. Once deployed by the Government, the NIT gathered approximately nine thousand IP addresses, approximately seven thousand of which were associated with computers in one of more than one-hundred countries other than United States. Dkt. 90-1 at 3, 5. The FBI maintains that it did not post content itself, but concedes that it allowed registered users to access the site, view and download child pornographic content for distribution, and post new content, including 44 “new” series of data. Id. at 3. Some website users commented on technical improvements to the site while under FBI control. Dkt. 90-3. A NIT has been relied on by the FBI in at least twenty-three other investigations. Dkt. 100.

Following this, the court explains that the FBI’s in camera, ex parte submissions justify its refusal to release more information on its NIT. Because of the nature of the submissions, there’s obviously not much to be gleaned from this “discussion,” other than it won’t be happening.

From there, the court lists several FBI activities that could be labeled “outrageous conduct:”

(1) The Government ignored the statute forbidding such conduct: “In any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody and control of either the Government or the Court.” 18 U.S.C § 3509(m).

(2) The Government facilitated the continued availability of Website A, a site containing hundreds of child pornographic images for criminal users around the world.

(3) The Government, in fact, improved Website A’s technical functionality.

(4) The Government re-victimized hundreds of children by keeping Website A online.

(5) The Government used the child victims as bait to apprehend viewers of child pornography without informing the victims and without the victims’ permission—or that of their families.

(6) The Government’s actions placed any lawyer involved in jeopardy for violating ABA Model Rules of Professional Conduct 8.4, and raise serious ethical and moral issues for counsel.

The court even calls out the government for its backward thinking — that such things shouldn’t be considered “outrageous” by courts because the criminals they were after were such terrible people.

The only justification for the acts of the Government, as provided by counsel, is that the end justifies the means, or in the Government’s words, “Because those who create, obtain, trade, distribute and profit from the imagery of the rape and sexual exploitation of children have turned to Tor in an effort to hide their activities, the United States has been forced to employ creative means to unmask the individuals engaging in the destructive and heinous criminal conduct.”

Despite all of this, the court lets the government slide. The balancing test doesn’t tip in the defendants’ favor. The government can cross many, many lines before the court starts adding tension to the leash. In these consolidated cases, the court doesn’t like what it sees in terms of the FBI’s actions, but still doesn’t see enough to dismiss the charges.

Not only that, but the court finds that the violations of Rule 41 jurisdictional limits and alleged lack of probable cause should have no effect on the collected evidence. The information collected by the NIT — namely, the suspects’ IP addresses — has “no expectation of privacy.” Anything else that colored outside the lines of statutes and laws can be excused through the good faith exception. The NIT warrant was facially valid, according to the court, even if the agent filing the affidavit may have known the search would exceed jurisdictional limits. The court finds a way around this by citing the DOJ’s letter containing its proposed Rule 41 changes (introduced by the defendants as evidence that the DOJ knew it was breaking the rules with the NIT warrant), rather than the expected precedential case law.

The DOJ letter reveals an intent to improve the rule, which does not rule out the possibility that DOJ could have considered Rule 41(b) sufficiently flexible to address changes in technology. See also, Dkt. 104-1. Furthermore, the record is silent as to the magistrate judge’s thoughts regarding the scope of the warrant at the time it was issued, and speculation on that subject is fruitless. The record does not show deliberate disregard.

In the end, the government wins. It gets to walk away from its outrageous conduct with (most likely) four new convictions and nothing but some lightly-singed feelings from an opinion front-loaded with a judicial benchslap. The rest is pretty much history. Whatever cases might fall apart because of what Rule 41 used to be will no longer be an issue in the future, as the DOJ’s jurisdiction “fix” is now law.

Filed Under: 4th amendment, child porn, doj, fbi, malware, nit, outrageous, playpen